About This Document: A Brief of Amicus Curiae

On March 18, 2009, the Mackinac
Center for Public Policy filed a brief of amicus curiae[*] with the
Michigan Court of Appeals in Howell Education Association v. Howell Board
of Education. The immediate issue is
whether e-mails to and from public school employees on a school district e-mail
system can be sought under the Freedom of Information Act (FOIA). But the case
may be extremely important in determining whether FOIA continues to provide the
public with a cheap and effective means of monitoring governmental action. In
its amicus brief, the Mackinac Center sought a ruling that would maintain
FOIA's usefulness.

The
case arose in the context of negotiations for a new collective bargaining agreement
for the Howell Public Schools. A political commentator filed a FOIA request for
e-mails to and from three union officials who taught at the schools to see if
tax-funded lobbying was occurring, to determine if the e-mail system was being
used for legitimate educational purposes and to obtain more information about
the bargaining dispute between the district and the union over health care
benefits. The three union officials generated or received around 20,000 e-mails
over a three-month period. The officials filed a "reverse-FOIA" suit seeking to
prevent disclosure of the material.[†]
The political commentator was allowed to intervene in the suit and was
provided with the subject titles to these e-mails. He eliminated over 14,000 on
that basis.

The crux of the officials' argument
was that many of the e-mails were not "public records" under MCL 15.232(e), as
they did not relate to an "official function." The trial court granted a
temporary restraining order that prevented disclosure of the e-mails. A
"discovery master" was appointed to review the e-mails, and eventually the
trial court held that all of them could be disclosed under FOIA. The trial
court nevertheless stayed its decision pending the school officials' appeal.

[*] "Amicus curiae" means "friend of the
court." Thus, the Mackinac Center is not a litigant in this case, but rather an
interested observer supplying additional legal reasoning for the Michigan Court
of Appeals to consider.

[†] Joining this lawsuit was a fourth union official who did not teach at the school but whose e-mails within the school's e-mail system were part of the FOIA request.